Podcasts about 5pointz

In this episode Robin Chadha gives us insights in the patronage of citizenM and how they have supported artists by incorporating art in hotels in unique ways, but also how they founded the new Museum of Street Art by working together with the driving forces behind the legendary 5Pointz in New York. He talks about his time in Amsterdam and the qualities of the local art scene. Chadha takes us on a tour through the 9 straatjes and shows us his favourite stores, places to eat, to shop and other hidden gems.   For links to (almost) everything we talk about in this episode, visit www.artcityamsterdam.com

In part one of this two-part interview with Renée Vara, Angela Johnson and B Crittenden discuss with her the changing arts landscape and the landmark Visual Arts Rights Act (VARA) litigation, 5Pointz v. G&M Realty, and Renée’s involvement with that case. Renée is the founder of Vara Art. She is a cultural entrepreneur, advisor, curator, and educator, and her area of research focuses on the intersection of contemporary art, art economics, and creative rights. Renée recently gave a guest lecture for the College of Fine Arts and Heinz College at Carnegie Mellon University about this case.

Steve and Katie end 2020 with a few updates on past podcast episode topics, including 5Pointz and moral rights litigation, the Painted Bride mosaic mural battle, deaccessioning in Baltimore, and pandemic related litigation. We look forward to many more interesting topics in 2021! Resources: https://news.artnet.com/art-world/5pointz-additional-2m-attorney-fees-1927310 https://www.inquirer.com/arts/isaiah-zagar-murals-philadelphia-painted-bride-court-case-20201022.html https://whyy.org/articles/isaiah-zagars-painted-bride-mosaic-could-survive-in-new-plan-for-old-city-site/ https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning https://www.artnews.com/art-news/news/baltimore-museum-of-art-deaccession-called-off-sothebys-1234575295/ https://www.latimes.com/entertainment-arts/story/2020-10-29/baltimore-museum-art-deaccession-sale-warhol-marden https://www.nytimes.com/2020/10/30/arts/design/baltimore-museum-brooklyn-art-auction-sothebys.html https://www.washingtonpost.com/entertainment/museums/baltimore-museum-warhol-sale/2020/12/04/1643859e-3317-11eb-8d38-6aea1adb3839_story.html https://www.latimes.com/entertainment-arts/story/2020-12-29/deaccession-museum-art-auctions-2020

Snow Day? 5Pointz and Abe Lincoln

Welcome to SEE YOU IN QNS! A business, real estate, and lifestyle podcast from Modern Spaces. This was a very fun episode for us to make that holds a special place in host, Eric Benaim's heart as a Queens native. Listen to the full story on how 5 Pointz came to be, what happened, how it fell, and the long aftermath. Thank you, Marie and Meres for sharing your story with us! SEE YOU IN QNS! is a Modern Spaces Production. Host: Eric Benaim Producer: Rebekah SW Editor:  John LaSalamander If you have an idea for a  guest, please email us at: marketing@modernspacesnyc.com Please take a moment to rate + review our show on iTunes and follow us on instagram: https://podcasts.apple.com/us/podcast/see-you-in-qns/id1493815355 https://www.instagram.com/seeyouinqns/ Thank you!  

Bzzzzz Bzzzzz Bzzzzzz…. On this solo episode I talk about the anxiety around trying to make something positive out of 2020, I mourn the loss of Eddie Van Halen and I discuss what attracts flies & causes pink eye. I also figure out what a Snozberry is! In creative news I talk about the legal victory for the graffiti artists of New York’s 5Pointz and an English student’s controversial art installation called “Grounding”. Finally, I discuss the commotion around Pantone’s new color. Don’t forget to reach out to me on Instagram at @JoeL8X and visit the show’s website at jwnpod.com --- Send in a voice message: https://anchor.fm/jwn/message

Für Love’N’Hate haben sich Niko, Dan und Base unter den gegebenen Umständen dieses mal virtuell getroffen und unterhalten sich über die Auswirkungen der Corona Krise und über kreativen Output in dieser Zeit. Außerdem gibt es eine Empfehlung an verschiedenen Hip-Hop Dokumentationen, die man sich während des Lockdowns anschauen kann. Auch die 5Pointz Klage ist ein Thema der heutigen Sendung. Wo möchte Graffiti heute hin?

ArteConcasNEWS del 12 Agosto, con le nuove fiere online, un ritrovato dipinto di Frida Kahlo, e la battaglia legale di 5POINTZ L'articolo #ArteConcasNEWS 12 Agosto 2020 | ArteCONCAS proviene da Andrea Concas - Il mondo dell’arte che nessuno ti ha mai raccontato.

ArteConcasNEWS del 12 Agosto, con le nuove fiere online, un ritrovato dipinto di Frida Kahlo, e la battaglia legale di 5POINTZ L'articolo #ArteConcasNEWS 12 Agosto 2020 | ArteCONCAS proviene da Andrea Concas - Il mondo dell’arte che nessuno ti ha mai raccontato.

Neste episódio recebemos Caduzão Dazartes (@caduzaodamassa no Twitter) para falar sobre Arte de Rua, sua relação com o mundo da arte institucional, o impacto social que ela tem e as relações com as estruturas de poder – e claro, suas relações com a arquitetura e a cidade. MARCAÇÕES 0min17s – Preâmbulo 4min15s – Conversa LINKS Fora de Prumo #4B: Grafite vs. Prefeitop. Insider: Why Banksy’s 'Shredded Girl With Balloon' Painting May Now Be Worth £2 Million. MultiRio: Grafite x pichação: qual a diferença? Quartz: A landmark court case affirms that street art is high art. YouTube: Cidade Cinza – Trailer. tvi24: Funcionários do metro de Londres apagam desenhos de Banksy por engano. DW: Castelo grafitado por brasileiros é alvo de controvérsia na Escócia. Amusing Planet: The Mysterious Toynbee Tiles. Vimeo: PIXO (Doc). Artsy: Como artistas do 5Pointz ganharam um processo de US$6.75mi contra incorporador que destruiu seus trabalhos (em inglês). YouTube: Style Wars (Doc). Youtube: Olhar Instigado (Doc). Nexo: Os Múltiplos Sentidos da Arte de Hélio Oiticica. MÚSICAS The Message, de Grandmaster Flash Tombei, de Karol Conká Playlist no Spotify NA INTERNET foradeprumo.com Twitter, Facebook, Instagram REDES SOCIAIS Arthur, Gabriel, Natália.

Für Love’N’Hate haben sich Niko, Dan und Base unter den gegebenen Umständen dieses mal virtuell getroffen und unterhalten sich über die Auswirkungen der Corona Krise und über kreativen Output in dieser Zeit. Außerdem gibt es eine Empfehlung an verschiedenen Hip-Hop Dokumentationen, die man sich während des Lockdowns anschauen kann. Auch die 5Pointz Klage ist ein Thema der heutigen Sendung. Wo möchte Graffiti heute hin?

Topics include: Coronavirus threatening the 2020 Tokyo Olympics, Prada assigning Raf Simons as Co-Creative Director, the upcoming Candyman movie and 5Pointz developers paying $6.8 Million USD to graffiti artists. This week, Mikey sits down with editors Nia Groce, Jake Silbert, Keith Estiler and Isaac Rouse. As always, thank you for tuning into HYPEBEAST Radio and The HYPE Report. You can subscribe to our channel on Apple, Spotify or wherever you get your podcasts. Please don't forget to leave a comment or review. Feel free to reach out to our host, Mikey Dabb on Instagram or Twitter @MikeyDabb. This episode features references to the following: (00:26) - 2020 Tokyo Olympics (06:44) - Raf Simon x Prada (13:03) - Candyman (18:30) - 5Pointz Graffiti

In this bonus episode, Steve analyzes the recent Second Circuit decision affirming the 2018 decision awarding $6.75 million to the artists of 5Pointz, whose works were whitewashed and torn down by the building’s owner in 2013.  To put this important decision into a broader context, we have re-released our April 2018 episode on 5Pointz, where we discuss the district court case in which the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute.  In that episode, Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti. They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial.

We go on the road with Meres One; we talk about our memories at 5pointz.  Check out Meres art here : @meresone NEW COLLAB - BEER CANVAS X CORTESNYC - CHECK OUT THE GLASS PREVIEW HERE @beercanvas PINS, POSTERS AND STICKERS - LAUNCH ONE & LAUNCH TWO NOW AVAILABLE AT CORTESNYC.BIGCARTEL.COM  Check out Carla's Otras Versiones Album - Otras Versiones - SoundCloud - Youtube.com/Carladepuertorico Find us on Instagram - @cortesnyclivestream And on Facebook - Cortesnyc Livestream

Artist Aviva Rahmani speaks to Steve and Katie about her artistic practice investigating and using the law.  Her current work, Blued Trees Symphony, is a musical and visual art work installed along miles of proposed pipeline expansion on land subject to possible eminent domain.  Rahmani has copyrighted the work and plans to use the Visual Artist Rights Act to prevent the art’s destruction, thereby frustrating the building of pipeline. Resources: You can learn more about Aviva Rahmani and Blued Trees Symphony here: http://ghostnets.com/# http://ghostnets.com/projects/blued_trees_symphony/blued_trees_symphony.html http://www.abladeofgrass.org/fellows/aviva-rahmani/ http://www.abladeofgrass.org/events/mock-trial/ https://hyperallergic.com/439553/aviva-rahmani-cardozo-school-of-law-stop-a-pipeline/ Episode Transcription: Steve Schindler:  Hi, I’m Steve Schindler. Katie Wilson-Milne:  I’m Katie Wilson-Milne. Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne:  And vice versa.  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Aviva Rahmani:  So if you look down on any of the measures it recapitulates a simple refrain (singing). Steve Schindler:  So, Katie, do you want to tell our listeners about the new idea that we have to have some shorter interviews with artists who engage with the legal world? Katie Wilson-Milne:  Yeah, so we are going to be releasing a series of podcasts intermittently in which we interview artists who tell us about how their work engages legal structures.  So, rather than Steve and I and a guest examining the art world through law and legal structures, we are going to flip it and ask artists to tell us about how their art is inspired by and reflects the law. Okay, we are here today with the artist Aviva Rahmani, who is going to share with us some information about her practice and her work using law as a medium and a tool in her work.  Aviva began her career as a performance artist founding and directing the American Ritual Theater, performing throughout California.  She graduated from the California Institute of the Arts and received a Ph.D. from Plymouth University in the United Kingdom.  She has presented workshops on her theatrical approach to environmental restoration and her transdisciplinary work has been exhibited internationally at many prestigious museums and exhibition spaces.  So, Aviva, thank you for being with us. Aviva Rahmani:  I am honored to be here with you.  Thank you for inviting me. Katie Wilson-Milne:  So just for our listeners who are not familiar with your work can you talk about your artistic practice and then also maybe when the legal system first entered your practice. Aviva Rahmani:  Well what’s interesting about law is that it’s a system to preserve civilization.  And I often think about the role of art in the anthropocene as the glue that may hold us together through this very perilous time.  So if you think about systems that way, it’s a hop, skip, and a jump between law and the judicial process and any other system that preserves culture.  My interest specifically in the kind of law I’m working with now developed in the late 70s when a lot of artists were using appropriation.  And what I noticed was that appropriation was very often an excuse to rip off other artists, other people in general, and very often women.  That really incensed me.  So I began to inform myself and follow some of the arguments.  So when I had this opportunity that came up that became the Blued Trees Symphony I jumped on it because I thought, “wow, that will be really, really interesting.”  Take the concept of copyright law and culture jam it so that it serves the society as the law for Eminent Domain, which is supposed to protect property, is supposed to protect land owners and actually serves corporations right now. Katie Wilson-Milne:  So what is the Blued Trees project? Aviva Rahmani:  The Blued Trees project began when a small group of activists, who called themselves “fracktivists” and were fighting fracking, looked for an artist who could work with them.  They had been inspired by Peter von Tiesenhausen in Alberta, Canada who had copyrighted his entire ranch when the natural gas pipelines wanted to go through.  And that intimated them enough that they backed off, but that was a few years ago and it was never tested in the courts.  So they came to me and said, "Can we somehow copyright the trees that are in the path of these corridors?"  And I said, “no, that’s what Monsanto does.  We are not going to do that.”  But we could copyright the relationship between the trees, the community, the people, and the habitat.  And then I looked at where the pipelines were projected to go and I thought well that would be interesting.  Think of it as a miles long installation.  And if you are looking at it aerially you could think of it as a musical line. So that was the beginning.  And then I designed a series of designated trees in those corridors that would represent musical notes but also would represent an obstacle to any heavy machinery that might want to go through.  And if you look down on that line it creates an actual musical score that can be sung and performed and I’m now using it as the basis for a complete symphony and an opera. Katie Wilson-Milne:  So the idea is if you took an aerial view of the path of a proposed pipeline you are creating an art project along that path. Aviva Rahmani:  Within that path. Katie Wilson-Milne:  And there is no pipeline yet so this is sort of anticipatory. Aviva Rahmani:  Correct.  Yes.  And I specifically only work with landowners whose land has not yet been condemned by the corporations.  That’s really important, because if the land has been condemned and they were to act on this project it becomes designated only as activist art which can’t be defended under copyright law.  And the landowners are liable to prosecution.  They could even be jailed. Katie Wilson-Milne:  So you have the permission of the landowners to create this project on these trees. Aviva Rahmani:  Correct.  In every case we are invited by private landowners and are given their permission and then we work with them to develop the project. Steve Schindler:  And do you feel this as the work of visual art or a work of musical composition and does it matter for your purposes? Aviva Rahmani:  I think it matters a great deal but I would rephrase that and say that this is a synsthetic project.  I’m not a synesthete but this is a cross over between audio, sound, music and the visual and the sculptural.  It was copyrighted as sonified biogeographic sculpture which would be a new category under the Visual Artists Rights Act, VERA. Katie Wilson-Milne:  Right.  So the part of the copyright law that you are referring to invoking here is the Visual Artists Rights Act, right? Aviva Rahmani:  Correct. Katie Wilson-Milne:  And that’s different than standard copyright law which just gives you a right to the creative aspects of your work so someone couldn’t make a poster of your work without your permission or something like that, which is also true -- that’s still true if it’s copyrighted.  But what the Visual Artists Rights Act does -- and tell me, if I’m wrong -- that you think you are invoking is this idea that the work, the physical work not just the image, can’t be destroyed without the involvement of the artists somehow.  That even though you don’t own the land, you don’t own the trees -- so it’s as if you have sold the painting and you no longer own it -- you still have some rights to that work of art because you created it and that’s what the Visual Artists Rights Act gives you that, that reach as the artist to control work that’s not necessarily located on your property. Aviva Rahmani:  Well it becomes a flying wedge into a lot of interesting legal problems. For example, as you know the copyright law was initially created during the French Revolution.  The phrasing then was to protect the spirit of art.  That is very operational in Europe but it hasn’t really been tested in the United States.  So that’s one part. Katie Wilson-Milne:  The moral rights, yeah. Aviva Rahmani:  Yes. Steve Schindler:  We tend to view copyright more in a sort of property scheme… Aviva Rahmani:  Yes.  Economically versus the droit morale.  Correct.  So that’s one big issue.  What does the culture value?  Is it only economic?  According to the IPCC and the United Nations, no.  There is the cultural piece.  The cultural piece is just as important as the economic.  And then as you also know, there are many suits that are being moved along to the Hague that represent protecting rivers, mountains, other sacred places that all go to the question of Earth Rights.  In this case because the way the project was developed was specifically to make it integral with the local habitat, it cannot be moved.  So this would become an entirely different category, which is another interesting point, but also, it immediately comes up against Eminent Domain Law and that’s the part that’s really, really interesting. Katie Wilson-Milne:  So yeah you are predicting or setting up this collision between Eminent Domain and our baby moral rights statute in the United States. Aviva Rahmani:  That’s correct.  And baby is probably the right way to put it because as people living in the anthropocene if we want to survive we better grow up and get really adult about what we are protecting and why. Katie Wilson-Milne:  So where is this project physically right now? Aviva Rahmani:  It started in Peekskill, New York.  Each section of the project which I call a measure in the symphony is one-third mile long.  In Peekskill we sent Spectra Corporation a Cease and Desist law which they promptly ignored.  Rather they sent me a Dark Money Letter.  A Dark Money Letter is something that says, “we are going to destroy you if possible.  Whether it’s possible or not we will destroy you.” Katie Wilson-Milne:  This is the company that has plans to build the pipeline and take over this land? Aviva Rahmani:  Correct.  And they are the same company which the present president has heavily invested in that destroyed Standing Rock in North Dakota so they have a long history of ignoring community rights and limits and specifically the water. Steve Schindler:  You said Eminent Domain has not been exercised yet and that’s really a governmental function.  What legal right does this private company have to be writing letters and ignoring your Cease and Desist letter? Aviva Rahmani:  This is where it gets more complicated. Steve Schindler:  I’m sure. Aviva Rahmani:  And even more important and interesting.  Originally Eminent Domain Law was set up to protect “the scared home” and to support the public good.  And public good became more and more narrowly defined in the past maybe 20 to 30 years to mean the economic interests of large corporations.  And actually besides the question of whether the economic interests of large corporations truly serve the public good it’s been the conservative judges like Clarence Thomas who have taken exception to that interpretation and specifically used the term “a perversion” of the intention of Eminent Domain.  It’s also very interesting because when you talk about the scared home you immediately open the door to the question of Earth Rights and the sacred in general.  Then you go back to the spirit of art and what is the function of art?  And again, what is the public good?  Is it possible that the public good could include a spiritual aspect that is interpreted and expressed in art? Katie Wilson-Milne:  You raise an interesting point and there are many areas in the law where politics and legal interpretation don’t neatly align the way I think we think they do on the hot button issues today.  But you are right.  There is expansion of Eminent Domain where the government can take more and more land for private purposes and not public purposes.  We have seen that evolve over time and it is some conservative judges who have said wait that is an expansion of government power.  I don’t like expansion of government power.  So they are the ones who are really against that.  That is an interesting pattern that is something to think about. Aviva Rahmani:  It would be particularly interesting with Kavanaugh because he touts himself as a conservative.  Will he then come into conflict with some of the other judges like Thomas? Katie Wilson-Milne:  Or will he agree? Aviva Rahmani:  Or will he agree?  Correct.  From a political point of view one would anticipate that he couldn’t possibly disagree since he has allied so strongly with this president. Katie Wilson-Milne:  Yeah.  I don’t know.  I mean I could see that he would take the Clarence Thomas view that this is an expansion of government power since he likes to say he is an originalist and a literal interpreter but we will see, Aviva, we will see. Aviva Rahmani:  We certainly will. Katie Wilson-Milne:  So in this project are you working with lawyers? Aviva Rahmani:  Yes. Katie Wilson-Milne:  I mean it sounds like part of it is the statement of the project and what the emotional impact of viewing the work and thinking about it.  But part of it actually has an activist function.  You are planning to actually do something. Aviva Rahmani:  I’ve been very careful about the term ‘activist’ because if it’s termed activist in the courts, it’s immediately disqualified.  So I have worked very hard on establishing the evidence that it’s permanent.  That it has been very carefully thought through as an esthetic project, that I have the support of art professionals.  For example, in the mock trial, Ben Davis was the person who swayed the judge.  And he swayed her on the basis of defining what is important art?  The mock trial came about because although we really wanted to litigate the project and we had several miles by then that we wanted to litigate, and we were hoping that we might have done a test case in Virginia because we had over 200 trees that had been painted as part of the project. Katie Wilson-Milne:  Meaning you would bring claims under the Visual Artists Rights Act to prevent the destruction of that land because it would also have destroyed the art work? Aviva Rahmani:  Correct.  So in Virginia what happened was that FERC, Federal Energy Regulatory Committee in effect ignored all the community input and rubber stamped the corporations to simply go forward.  When we spoke with the lawyers there what we realized immediately was that we needed local lawyers because of the jurisdictional details.  The lawyers there were afraid that they didn’t have enough experience with copyright law.  The copyright lawyers I was already working with like Gale Elston in New York and Patrick Riley who was working out of California didn’t feel that there was enough case law for them to be able to say to the local lawyers, “go forward on this and then we can stand on our advice without being held liable.”  So in the end we put in letters and testimonials about the importance of the project culturally, locally to the community and so on and so forth but we could not go forward legally. Steve Schindler:  Right, because isn’t one of the requirements of invoking VERA in the way that you would like to invoke it - and we have discussed this on a prior episode relating to the 5Pointz street art - is that you have to show that the work that you are trying to protect is of a recognized stature. Aviva Rahmani:  Exactly. Steve Schindler:  That’s a very vague term and it’s not specifically defined in the statute.  But how did you go about trying to make that case? Aviva Rahmani:  That was actually my priority from the beginning.  Patrick Riley was the lawyer who filed the initial copyright registrations.  And the advice he gave me then was, “win this in the court of public opinion before you step into the court room.” Steve Schindler:  That sounds like good advice. Aviva Rahmani:  It was really good advice.  So I would say the first 2 years of the project my entire focus besides actually expanding the project was to get articles written, to see films made, to do interviews like the one we are doing right now so we could build up a body of evidence to bring to trial.  The mock trial came about because we had not been able to find a lawyer who was willing to litigate and I was really angsting about this with Deborah Fisher at a Blade of Grass and she said, “why don’t we just a mock trial?”  And I had thought if we went to trial, that in itself would be a fascinating performance. Katie Wilson-Milne:  Yeah. Aviva Rahmani:  But this was another way of coming at it.  I know you participated Katie.  You did a phenomenal job.  Everybody did a phenomenal job in pulling that off.  We had April Newbauer, who was the federal judge from Queens.  We had real jury, we had real lawyers, we had real witnesses.  There are lots of wonderful photographs we got out of it.  And the upshot was that we did get an injunction. Katie Wilson-Milne:  So how was it set up?  Did you know how it was going to go ahead of time?  How spontaneous was it?  How scripted? Aviva Rahmani:  It was not scripted at all, but the roles were very clearly defined.  So, for example, we brought in one of the trees that had been cut down and we had some somebody be a witness translator for the tree.  And we piped in the sound of part of the symphony and then she translated what that music meant.  What it meant to the forest to be cut down to the rest of the tree’s family, to the water and so on and so forth. Steve Schindler:  And did you videotape this?  Of course. Aviva Rahmani:  Of course. Steve Schindler:  So here’s an interesting at least observation from my point.  As lawyers, when we get ready to go to trial and have a case we often do mock argument or mock trials.  The reason that we do them is so that when we go to court we can refine our arguments.  Sometimes you have a mock jury to understand how jurors are going to relate to the arguments that you have been making to lawyers during the case.  But do you view the mock trial as part of the work of art or a predictor? Aviva Rahmani:  Absolutely.  A minor detail on the mock trial was I don’t know how to put it in my CV.  It can’t be categorized as a one person show.  It was initiated by A Blade of Grass.  It wasn’t an exhibition in any conventional sense.  It’s not even part of a group exhibition. Steve Schindler:  And who was the author?  I mean I guess it’s a group project of some sort. Aviva Rahmani:  Yeah. So it goes to copyright questions. Katie Wilson-Milne:  It’s a performance with many authors. Aviva Rahmani:  It was definitely a performance.  So all I do in my CV is I have an initial paragraph of narration that says, “and we had a mock trial on April 20 and we got an injunction.” Katie Wilson-Milne:  So, one interesting thing about your work, Aviva, is how closely you are working with lawyers.  That you are not just sort of using some legal concept as an inspiration to expose an injustice or just draw attention to an issue.  You are actually working with the law with the idea that you are going to do something within the legal system. Aviva Rahmani:  Right. Katie Wilson-Milne:  And we find we work with people in the art world and artists as well and you know there can be a real difference between how an artist looks at an issue and the way a lawyer looks at an issue.  And I’m wondering how you feel in your collaborations with lawyers?  If you have observations about coming to these issues from different places, how easy it has been to work with lawyers or you know what you noticed about the different places you are coming from? Aviva Rahmani:  Well as you mentioned at the beginning, I started as a performance artist, and I started in performance art from a conceptual point of view.  So it’s very easy for me to segue into any other discipline because they are all systemic issues.  I find the question of what does the law do very parallel and very equivalent to the question of what does art do?  What does music do?  What does a forest do?  It’s all functional questions.  These are fascinating questions but they all feed into each other.  I think the great mistake that many of us have made in trying to function in the anthropocene is that we stay in our silos, we stay in our disciplines.  We think that if it’s a policy issue then it’s just going to be politicians that deal with policy and see how effective that is. Steve Schindler:  I think lawyers are brilliant in staying within their silos.  It’s amazing that you can get them to come out.  One of the interesting things to me just in terms of craft is when you think about the craft of law, you think about writing in a way that tries to narrow and be very specific about meaning.  You don’t want to draft a contract and have multiple possible interpretations even though sometimes you inadvertently do whereas art is all about multiple meanings and layers.  And I think it lends itself to be a more flexible way of looking at the world than law can sometime be. Aviva Rahmani:  I’m not sure that’s true. Steve Schindler:  Okay. Aviva Rahmani:  And one of the things that somebody said to me when I was feeling particularly despairing about this whole process was judges are people.  They are just as influenced by the media and the conversations they have at dinner as anybody else.  As far as how specific the details are in the law versus in art there were a lot of ideas I had to think through about exactly where is the permanence of the project?  Exactly where is the art world conversation about the project which was really what swayed the judge.  But in art you do the same kind of thinking.  How wide must the mark on the trees be in relation to the trunk?  Exactly what pigment am I using?  Exactly how will there be an acoustic ecology that evolves because the paint has buttermilk in it. Steve Schindler:  That was a question I had speaking of the paint.  The paint that you are using, I assume that it is friendly to the trees in some way - that just slapping oil paint on trees would probably be inconsistent with what you are trying to do.  And yet there is a notion in the Visual Artists Rights Act and Copyright in terms of permanence.  And how does the pigment relate to this sort of notion of permanence? Aviva Rahmani:  From the point of view of being an artist that was one of the most exciting parts of the whole project.  The slurry that was used to paint is a casein.  Casein means a pigment that’s mixed with milk.  In this case we were mixing non-toxic ultramarine blue, which was translucent, with buttermilk.  And, buttermilk is one of the ways you grow moss in Japanese gardens.  The mark on these trees we photographed lasted for maybe 2 years, maybe 3 years.  But because it had the buttermilk it became part of the ecosystem of the tree, of the roots, of the canopy.  And therefore, in effect, it had a second life that emerged from the tree’s interaction with the art project. Steve Schindler:  And did you consider, I mean it’s interesting because one of the early cases involved in the Visual Artists Rights Act comes out of Chicago and Kelley Chapman and the case about the gardens.  And the courts observation in not applying VERA was that these were works that were subject to sort of natural change and evolving and therefore not sufficiently fixed. Aviva Rahmani:  Ephemeral. Steve Schindler:  And so is that something that you considered in selecting the paint? Aviva Rahmani:  Absolutely.  One of the first lawyer that we spoke with after I had spoken to Patrick was Jonathan Richman, and that was one of the first case studies that he brought up and said well that was a ephemeral.  How are you going to prove that this is permanent?  That’s when all these issues came in.  The permanence of the trees themselves, which is the base for the project, the permanence of the relationship to the water shed, to the entire habitat, the permanence of the paint, and how the paint then became integral into a longer term project and how the entire project became the basis for this other much more complex performable piece which is symphonic and operatic. Katie Wilson-Milne:  So what’s next?  Are you expanding the project physically?  What is on the table for bringing legal action? Aviva Rahmani:  Absolutely.  Well the first task is to continue to expand the project.  So this interview helps expand the project, because it reaches a wider audience, a wider circle of public opinion.  The symphonic aspect is very structured conceptually so the very first measure in Peekskill was the overture.  The first movement of the symphony is the painting and that continues.  We just did a measure in Canada - Saskatchewan - and there are other inquiries about doing it elsewhere across this continent and some interest outside this continent.  There is interest in Japan, for example. Katie Wilson-Milne:  Is there a fracking problem in Asia or in Europe in the same way? Aviva Rahmani:  There are fracking problems everywhere one way or another. Steve Schindler:  And does the fact that the legal system is different require you to sort of start the study anew? Obviously Japan has a different legal system than we do. Aviva Rahmani:  There are different details but the two ideas legally that hold no matter where you are in the world are whether or not the government has the right to take land for private purposes and what protection is there for art and culture in general?  Then you come up against a lot of big issues.  For example, someone was interested from China.  I hate to think what I might come up against there but it would be very interesting. Katie Wilson-Milne:  There might not be as much process involved, but it would be interesting.  But you know to Steve’s point you might have a different kind of success in Europe where these moral rights are really engrained in the legal system in a way they are very unfamiliar in the United States even though we have this small protection for visual art. Aviva Rahmani:  On the other hand all these pipelines in this country are going to Europe to compete as a resource with Russia. Katie Wilson-Milne:  So there may be more material there for you. Aviva Rahmani:  Yeah.  So it gets complicated as we go along and it goes deeper and deeper to the question of Earth Rights and the relationship between Earth Rights and art and culture in order to survive this incredibly ominous period in human history. Katie Wilson-Milne:  Do you think you will actually bring a lawsuit? Aviva Rahmani:  I would love to.  I would love to.  Whether that will happen or not, I don’t know. Katie Wilson-Milne:  All right.  We’ll have you back to talk about these other projects. Steve Schindler:  Thank you so much.  Thanks for joining us today. And that’s it for today’s podcast.  Please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com and if you like what you hear give us a 5-star rating.  We are also featuring the original music of Chris Thompson.  And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good. Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne. Steve Schindler:  And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne:  And vice-versa.  The information provided in this podcast is not intended to be a source of legal advice.  You should not consider the information provided to be an invitation for an attorney client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction. Music by Chris Thompson.  Produced by Jackie Santos.

Episode Image by Ren Santiago Theme song HoodGrown by David-James @davedashjames_ https://soundcloud.com/davedashjames Transition music Nathan Peters @mztrwlsn @mrwilsonbeats https://soundcloud.com/mrwilsonbeats **Special Theme Music: Oye Mi Canto by N.O.R.E ft Nina Sky & Daddy Yankee** TAG THE ARTIST: Ren Santiago @rensantiagophotography @reneiry www.rensantiago.com FOR US BY US: Roxbury Sunflower Project https://roxburysunflowerproject.tumblr.com/ WORD ON THE STREET: Krazy Kav Kavanaugh will not teach at Harvard in January as scheduled, law school announces https://bit.ly/2y9O4n8 Protesters greet GOP Sen. Jeff Flake in Boston, urge him to vote against confirming Kavanaugh https://bit.ly/2OHOL0t Some folks shouldn’t be able to mass text ‘THIS IS A TEST’: Cell phones across the U.S. will get a ‘Presidential Alert’ https://bit.ly/2OLKnh0 Police confirm popping balloons led to response for Simmons University 'threat' https://bit.ly/2E4DLpQ Mass talk You can walk through thousands of jack-o’-lanterns at Franklin Park Zoo https://bit.ly/2BWTzIC Charlestown man arrested after shots fired in Roxbury https://bit.ly/2Plh7Ll Workers at Marriott hotels in Boston go on strike https://bit.ly/2C3J7iM Boston man with BB gun attempts three armed robberies in 30 minutes, police say https://bit.ly/2OIfbz7 A minke whale washed ashore in Marshfield. It’s the 22nd dead minke in New England this year. https://bit.ly/2NuBvrA AHT & Money The Gray Market: Why Formal Education Is Overrated When It Comes to Dealing Art (and Other Insights) https://artnt.cm/2y6c1vR Chicago is expected to make $10 million by selling a monumental Kerry James Marshall it commissioned for $10,000. https://bit.ly/2PkLh1c The 25 Rising Power Players Who Will Run the Art Market https://bit.ly/2zQ88fu The developers of the 5Pointz site appealed a decision ordering them to pay artists $6.7 million https://bit.ly/2Qx51if Aht and happiness Kerry James Marshall Again Proves He’s among the Greatest Living Artists https://www.artsy.net/article/artsy-editorial-kerry-james-marshall-proves-greatest-living-artists 6 Simple Things Artists Can Do to Feel Happier in Their Studios https://www.artsy.net/article/artsy-editorial-6-simple-things-artists-feel-happier-studios Female Artists Are Front and Center on Frieze London’s Opening Day https://www.artsy.net/article/artsy-editorial-female-artists-front-center-frieze-londons-opening-day Takashi Murakami and Virgil Abloh to Unveil New Shared Artworks at Gagosian Beverly Hills https://www.hollywoodreporter.com/news/takashi-murakami-virgil-abloh-new-show-at-gagosian-los-angeles-1148512 KING PINS: Fernando Botero http://www.artnet.com/artists/fernando-botero/ https://www.christies.com/features/Fernando-Botero-7354-1.aspx UNSUNG HEROES/history moves: Mónica Carrillo Zegarra (1984 - Present) http://www.poetryny.com/?p=670 GOOD LOOKS (interview): Wilton @wiltontejeda13 REALTALK: Rats and Roaches ANNOUNCEMENTS: Oct 23rd Panel Women Shaping the Arts in Boston Rate, review and subscribe to us on APPLE podcast Check out our white wall review at the MFA, reviewing the photography of Lorraine O’Grady. Daughter of Contrast www.daughterofcontrast.com/ @daughterofcontrst Amber @ambersafro HIT US UP! If you’re an Artist or a small business owner, you would like to be interviewed on the show please email us and send us a short bio, images and media handles. Please Review, Rate and Subscribe to us on Apple Podcast Stitcher, Tune in, and Google Play!

In a recent court case called the 5Pointz trial in New York City, artists win a multimillion-dollar settlement proving the power of public art.  We discuss with Federal Court Judge Frederic Block the trial, his new book Race to Judgement and creativity. https://fredericblock.com/   Check out his story in issue #25 of Art Hive Magazine:  https://issuu.com/arthivemagazine/docs/arthive25   Links to editorial we found on 5Pointz https://www.nytimes.com/2018/06/01/arts/design/murals-silverstein-properties-world-trade-center.html https://www.nytimes.com/2018/02/20/nyregion/graffiti-artists-5pointz.html https://www.nytimes.com/2013/11/20/nyregion/5pointz-a-graffiti-mecca-in-queens-is-wiped-clean-overnight.html?pagewanted=all&_r=0 https://www.nytimes.com/2013/11/20/nyregion/5pointz-a-graffiti-mecca-in-queens-is-wiped-clean-overnight.html https://news.artnet.com/art-world/5pointz-developer-appeal-1228928 http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm  

For years, law firms have had programs aimed at increasing diversity in their attorney ranks. But we’ve got some bad news: It’s not working. Today we’re joined by senior reporter Natalie Rodriguez, who will tell us about the results of our latest survey of diversity at law firms, and what experts say are the things that could actually move the needle on this issue. Also this week, we talk about a federal court approving the blockbuster $85 billion merger of AT&T and Time Warner; the New York Attorney General suing Trump for allegedly using his charity foundation as a “personal checkbook”; and a judge calling out the “egregious behavior” of a New York City real estate developer who demolished the famed graffiti space 5Pointz.

On this month’s podcast, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them.  Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work.  Christie’s recently sold Leonardo da Vinci’s Salvator Mundi painting for $450 million, by far the highest price ever garnered by a piece of art at auction.  At the same time, much about the auction process remains secret.  The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders.  While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going.  Steve and Katie discuss these issues and others having to do with regulation, transparency and potential conflicts, and welcome famous Sotheby’s auctioneer Oliver Barker to take us behind the scenes of a big auction. Resources: http://www.sothebys.com/en/specialists/oliver-barker/bio.html https://www.nytimes.com/2013/01/28/arts/design/as-art-market-rise-so-do-questions-of-oversight.html https://www1.nyc.gov/assets/dca/downloads/pdf/about/auctioneer_law_rules.pdf https://www.princeton.edu/ceps/workingpapers/203ashenfelter.pdf https://insight.kellogg.northwestern.edu/article/place_your_bids http://blogs.cornell.edu/info2040/2015/10/15/auction-psychology-emotions-behind-bidding/ https://mindhacks.com/2012/09/19/bbc-column-auction-psychology/ https://www.thecut.com/2016/12/inside-the-mind-of-a-million-dollar-art-bidder.html Episode Transcription Steve Schindler:  Hi, I’m Steve Schindler. Katie Wilson-Milne:  I’m Katie Wilson-Milne. Steve Schindler:  Welcome to the Art Law Podcast a monthly podcast exploring the places were art intersects with and interferes with the law. Katie Wilson-Milne:  And vice versa.   The art law podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier ligation and art law boutique in New York City. Oliver Barker:  There was that element of, you know, great excitement coupled with complete fear in terms of – kind of the very live nature of that performance, and that’s something which has always appealed to me as an auctioneer.  You know, there’s a very live entertainment kind of perspective of that role. Steve Schindler:  Katie, I received some feedback on the podcast from listeners this weekend, and one of the comments that was made to me was with respect, particularly to the Berkshire Museum Deaccessioning episode, that this listener didn’t think that we were necessarily impartial enough or that we were taking sides.  And I thought about that a little bit and one of the things that I feel is that we're not journalist.  We're not pretending to be journalists and we have points of view, and I think we're going to express them.  What I think is also important, though, is where possible to have people aligned with different points of view, and we are very open to that.  So, I would say if somebody from Berkshire Museum who listened to our podcast, a representative or a member of the Board of Trustees, would like to come on and present their point of view in conversation with us – Katie Wilson-Milne:  We would love that. Steve Schindler:  We would love that.  And similarly with respect to the 5Pointz episode, we spent a lot of time with the artists and people involved in 5Pointz, but certainly if Mr. Wolkoff wants to come on and talk about what motivated him – Katie Wilson-Milne: To develop the site. Steve Schindler:  We're happy to have him on – and have the conversation.  We will still have the same view points that we have, but we certainly would like to engage with people who have other view points. Katie Wilson-Milne:  Right and our goal with this podcast is to raise interesting issues that people may not have thought about in the way that we talk about them that connect the art world and the legal world.  But it’s not to provide a completely even handed news article about these topics, it’s to have an interesting discussion between -- mostly the two of us, and we are who we are and we think what we think what we think.  I think, actually, it may evolve over time depending on who we talk to, how we present certain issues.  We're also constrained by the guests who come on the show, and we want to be respectful of those guests by honoring their opinions and what they have to say. Steve Schindler:  So, if you want to come on the show – Katie Wilson-Milne:  Send us an e-mail. Steve Schindler:  Let us know. Katie Wilson-Milne:  So, Steve on this month’s podcast, we're going to talk about auctions.  We have the May auctions coming up at the big houses - Christie’s, Sotheby’s and Phillips - both in New York and in other international locations, mainly London, in early May.  So, it’s a good time to talk about this.  Auctions tend to dominate the art world both in terms of the publicity they get, the prices that come out of auctions, and obviously they are public in a way that private sales are not.  So, it’s an exciting topic. Steve Schindler:  And we're going to be joined in our podcast by the Sotheby’s auctioneer Oliver Barker who is one of their top auctioneers in the area of contemporary art. Katie Wilson-Milne:  Yes, so he is going to give us an insider’s view on what it feels like to be in an auction, what an auction house like Sotheby’s does to prepare for a big auction and what he notices has changed over time in the auction world.  So, to back up and give our listeners a little bit of background the art market itself is said to be worth between $40 to $60 billion right now.  Auction sales from the main auction houses - which are Sotheby’s, Christie’s and Phillips - make up about $11 billion of that, that was the figure in 2017.  Only beat, I think, by the results in 2007, which were over $12 billion. So, it’s a big chunk of the overall art market takes place at art auctions in these three big houses.  The biggest group of auctions sales take place in the United States.  Although the auctions in London and in Hong Kong are also incredibly significant in terms of the profile works that are sold and the types of buyers that are there.  One thing that makes auctions interesting is how psychological the selling format is.  So unlike a private sale, where a dealer – whether its Sotheby’s or in a gallery or private dealer – will call a client or a contact and say, “look, I have this work for sale,” you know, “here's what the seller will take it for it.” At an auction you get the atmosphere of people bidding against each other, which seems to have great psychological effect, and there have been sales in the recent past that have taken off tremendously and sold for way more than anyone could have imagined.  The most famous example of that is the Salvator Mundi, Da Vinci sale at Christie’s that happened last November, where we had two buyers in the end bidding against each other.  And the work ultimately sold for around $450 million, which is far and away the most expensive work that's ever sold at auction ever, ever, ever.  Right, Steve? Steve Schindler:  Right and in that case you had two buyers who were bidding against each other who each thought that they were bidding against somebody else, as its been reported.  And so it drove the price up even higher than any one even contemplated. Katie Wilson-Milne:  Well, because of who those two bidders were. Steve Schindler:  Sure. Katie Wilson-Milne:  So, the story is actually pretty interesting right.  We found out after the auction that the ultimately winner of the work was a Saudi prince, and he had been bidding against a friend, actually, from the United Arab Emirates who wanted the work for the new Louvre in Abu Dhabi.  They both thought they were bidding against someone from Qatar instead of each other.  When they found out that they weren’t and they bidding against each other, which is the only reason it went for $450 million, they apologized to each other and the Saudi prince said, “oh actually you can take the work for the new Louvre in Abu Dhabi in exchange for a yacht.”  So, it actually all worked out and the great anxiety about that sale, which is that this masterpiece would go into private hands, now resolved and hopefully it will be see at the Louvre Abu Dhabi. Steve Schindler:  I’m not sure what that whole transaction means for art or auctions, but it was amusing. Katie Wilson-Milne:  But it happened. Steve Schindler:  And – but from the point of view of a seller, you see these incredible bidding wars for certain kinds of objects, but the auctions can be a little bit terrifying for a seller, because you never know what the market is going on any given night.  You know at least if you're selling a work at a gallery you have a lot more control over the situation and you can wait until a buyer comes along with a price that you're asking. But in auction one possibility is that the bidding is good and strong and you get a very good price; the other possibility is that there isn’t any bidding that night for a variety of reasons. Katie Wilson-Milne:  Right. Steve Schindler:  And the work is publicly not sold. Katie Wilson-Milne:  Right, so unlike a private sale where something isn’t sold, well, you just wait and you sell it later.  But at auction if it doesn’t go well, that can really taint the marketability of the work. Steve Schindler:  And now the rules require that the auction houses announce that a work has not been sold.  Then, the word that's used for it sometimes is that the work is burned.  And then can't really be sold, at least not at auction, for some period of time. Katie Wilson-Milne:  I would totally take advantage of a burned work if I could -- Steve Schindler:  Well, of course and the auction houses then do try to sell the work privately afterwards and sometimes they know, because they know who the bidders are.  You know, what the interest is and then they are broker a sale immediately after the auction. Katie Wilson-Milne:  Just maybe not for as high a price as they could have before.  So, Steve we've talked a little bit on this podcast and certainly between ourselves about the level of or lack of regulation in the art market and sort of the increasing concerns over transparency, either in terms of money laundering or just transparency about the provenance of a work.  Auctions do function a little bit differently than private sales, right?  I mean there’s more transparency if not complete transparency. Steve Schindler:  Well, auction houses are much more regulated than private sales and -- Katie Wilson-Milne:  Which are not regulated at all. Steve Schindler:  Which are not regulated at all, and there is certainly a lot more transparency in an auction process.  I’m not sure that we can say that there’s 100% transparency.  But there are a lot of rules that the auction houses have to comply with, and they do comply with, that at least ensure a certain fairness and openness in the process. Katie Wilson-Milne:  But one of those things is not who the seller is often, right?  That's the one thing that's still not transparent -- Steve Schindler:  That's right and there was a case that ran all the way up to the court of appeals a few years ago. Katie Wilson-Milne:  In New York. Steve Schindler:  In New York, where we had a buyer at an auction who decided that he didn’t want to pay for the work after the fact and challenged the auction house rules on the theory that there needed to be a written disclosure of the identity of the buyer.  And actually that case went up to the highest court in New York and in the court below, much to the unhappiness of the entire auction industry, the court below actually found for the purchaser and invalidated the sale because there was no written record of who the seller was.  And the court of appeals decided to overturn that much to the relief of the auction industry. Katie Wilson-Milne:  Yeah, there have been efforts over time to require dealers to disclose the identity of the seller to the buyer, but those have not been successful, though.  The art world seems somewhat allergic to idea of disclosing who the owner of a work is. Steve Schindler:  There are really two big secrets now at an auction: one is, sometimes, who the owners are.  I mean, not at every auction.  Sometimes it's in fact a huge selling point. Katie Wilson-Milne:  Like the big Rockefeller sale coming up. Steve Schindler:  Right exactly, so the provenance of those works is incredibly important to the value, but sometimes collectors don’t want the world to know what they’re selling.  And so they insist that their identities be kept private and often those works are offered as the works of a private collector or European collector, an American collector.  And the other big secret at auction is this reserve price. Katie Wilson-Milne:  So, what is the reserve price? Steve Schindler:  Well, the reserve price is the secret price that's agreed to between the seller, or the consigner of the work, and the auction house.  And it’s the price below which the work cannot be sold.  And what's not a secret and what has to be disclosed is the fact that there is a reserve, and that is clearly disclosed in all auction catalogues.  And typically in the major auction houses they disclose that all of the sales are with reserve unless they say otherwise. And the other thing that means is that, the way that the auction is conducted, is that the auctioneer is allowed to submit bids on behalf of the seller up to the secret reserve price. Katie Wilson-Milne:  Why would they do that? Steve Schindler:  Well, it’s really – some people have criticized the practice, the practice is sometimes called chandelier bidding on this idea that the auctioneer is sort of taking bids off the -- Katie Wilson-Milne:  The ceiling, yeah. Steve Schindler:  -- the chandelier in the ceiling, but really it’s just a question of creating some theater and drama, because up until the reserve price is hit, the work can never be sold.  So, even if the auctioneer is engaging in some bidding up to the reserve price, until you hit the reserve price, it really has no real impact, accept to sort of -- Katie Wilson-Milne:  Confuse everyone about what the reserve is. Steve Schindler:  -- or to warm up the room if you're taking it from the auctioneer’s perspective. Katie Wilson-Milne: So, how does the concept of a reserve interact with this other concept of a guaranty?  And what is a guaranty? Steve Schindler:  Well, a guaranty, which is often used now by major auction houses to entice collectors of works to consign the works to them, is basically a contract of promise by the auction house to pay a set amount of money to the consigner of the works regardless of what happens at the auction, and regardless of whether the reserve price is hit. Katie Wilson-Milne:  The seller knows 100% they are going to get at least that amount of money. Steve Schindler:  Right, sometimes that's important to a seller the thing that the seller normally gives up when they agree to take a guaranty, is some of the upside of the auction if the price goes above the guaranty and the reserve price. Katie Wilson-Milne:  So, the auction house would split the profits above the guaranty. Steve Schindler:  Yeah and in some proportion and very often now the auction houses, if they are giving a guaranty will in a sense syndicate that risk to other parties who put up the money and are willing to make the guaranty. Katie Wilson-Milne:  So, it’s a third party that – if the bidding didn’t go higher than the guaranty price they take the work. Steve Schindler:  They would take the work at whatever price they guaranteed it at – most of the individuals or institutions that give guaranties would prefer not to have the work.  What they are doing is making a financial bet that the work will sell at a price that is higher than the guaranty in which case they receive a return on their investment. Katie Wilson-Milne:  So, Steve let’s talk to an auctioneer who actually works at these big night auctions and see what they have to say about how they work.  Our guest today is Oliver Barker.  Oliver is a senior director at Sotheby’s auction house and co-chairman of Sotheby’s Europe.  He is also one of the auction world foremost auctioneers.  So, he is both behind the scenes and in front of the camera at Sotheby’s, which he joined in 1994 moving through roles in contemporary art as a senior international specialist, among others. He has overseen some market-defining auction sales, including two major sales of Damien Hirst works, including one that set the world record for single artist sale.  He has a particular interest in post war British art, which he has promoted at Sotheby’s.  And he was the auctioneer at the May 2017 auction in which a Basquiat work sold for record-breaking $110.5 million. Steve Schindler:  Welcome to the podcast Oliver.  So, what kind of skills do you think a good auctioneer has? Oliver Barker:  Yes, well you know, in any given sort of auction, obviously the auctioneer’s role is to try and help proceed the kind of trading from the consigner to the purchaser.  So, the ability to remember, without slavishly looking down at kind of the auctioneer’s book, which is obviously there as a working tool during an auction, exactly what the estimate is for a particular work and also its protective reserve price, and therefore also it’s kind of opening bid, there’s a number of kind of key financial things in play. And, equally, there are so many means of bidding in this sort of modern day.  So, I suppose most traditionally, the easiest way to bid is actually in the room, whether it’s a private client or whether you choose to bid through an agent who’s sitting there executing bids on your behalf.  And there are also kind of the execution of bids via the telephone through a Sotheby’s representative.  There may also be commission bids, and the commission bids are always ones which are lodged in the auctioneer’s book. So, whilst starting off on a particular – you hear auctioneers say footing, the auctioneer’s footing — one has to be aware where the reserve price is, where a commission bid might be and more importantly where the commission bid ceiling is.  Whilst also kind of orchestrating multiple bids that might come in depending on what the level of interest is in a particular lot. Katie Wilson-Milne:  So, we definitely want to ask you about the stages of an auction, so we’re going to get back to a lot of the items you just mentioned.  But maybe first we should ask you to explain to our audience how you decide what goes into an auction versus a private sale.  I mean, big houses like Sotheby’s and Christie’s do both, maybe there’s a movement towards more private sales now.  So, what is the determination of what goes up for auction and what doesn’t? Oliver Barker:  Well, I think it’s a really interesting question.  I think at the moment because the market is ostensibly very strong, and particularly in the area of contemporary art with which I’m most focused.  I think we have the luxury in contemporary, to a great extent actually, to curate the auctions that we’re handling. In other words, there are far greater more voluminous supplies of great objects of the Post-War period, which is how we loosely define Contemporary, then there might be say of old master, kind of masterpieces.  We use our global network and the conversations that we’re having with museum curators or dealers or gallerists or collectors to really have a insider’s knowledge, if you like, of who are the artists sort of being — sort of collected and who are in high esteem in a particular moment. But then also amongst those artists works, what are the key periods or what are the most rare objects?  And what are the ones that the market has seen a real hiatus of?  And quite quickly, you sort of figure out that, okay you have the real estate of a certain amount of exhibition space prior to an auction.  You have the real estate of a Sotheby’s catalogue, which is a major marketing tool that we use, but equally is one that takes a huge amount laborious work in preparing. One has the audience’s attention span, which generally doesn’t last beyond a certain amount of time and then also you have key experience.  So, we tend to have in an evening sale a context probably not more than about 75 lots.  That will probably be your maximum.  I mean, there’s no hard and fast rule.  But I think much beyond 75 lots you know, it’s hard to keep an audience’s attention and focus.  But at the same time you want to be able to curate a sale so that — there are lesser value things that which you know, are going to be short fast sellers. And you want also want pepper the ordering of the catalogue, which is also particularly critical, to introduce the high value lots at the commercially most optimum moments.  And I think at the end of the day also we’re getting very closely judged both by Wall Street and by the collector community in terms of how many unsold lots we’re handling.  I mean, I think it is fair to say that it’s a rarity to have sales which are 100% sold.  When putting a sale together one intends to try and sell everything as best one can, but market forces obviously and a variety different reasons may mean that things go unsold.  But there may well be through price expectation or physical condition issues, problems of some sort of conservation for example, that on the day the market turns its back.  So, we would like to have a fairly tightly trimmed unsold rate obviously of a percentage as low as possible. Steve Schindler:  Maybe talk us through sort of setting the stage of what it’s like, the atmosphere is like, at one of the big evening Contemporary art auctions that you preside over. Oliver Barker:  No, I mean the big auctions really are you know an amazing spectacle.  I think it’s fair to say that the evening sells are very much the summation of a very intensive three month period since the last set of auctions.  And in many cases, the fruition of many years of engagement with a particular collector, meaning that we have put together an auction of what we believe to be the finest works of art in that particular sale season. So, there’s a tremendous sense of anticipation from a number different perspectives whether it’s the vendors.  Whether it’s the market itself responding to the quality of the objects that we are offering, whether it’s the people within the room itself, in other words the people who attend, whether they be private collectors or consigners or potential purchasers.  From Sotheby’s perspective obviously, there are the management and the financial expectation of the sales and there maybe even be our shareholders or our board members or even Wall Street that are looking in as well. So, I think it’s fair to say that there’s quite a lot of eyes coming from many different disciplines, all of whom are very clearly focused on that start time of 7pm. when we kick off.  And being in a live business as we are, it’s very exciting that all of our presale marketing is conditioedl, obviously to that deadline and approaching that kick off point. So, that we have done our absolute utmost on behalf of the vendor to reach out to the world’s collectors and — you know, I think it’s interesting, in previewing the next major sale season, New York in May, where there are so many superlative objects that are coming to the market at the same time.  You will find that the orchestration of marketing these sales, and therefore how well the auction does, is really crucial in making sure that the world’s global collecting community is very, very focused on participating and being focused from New York at 7pm when we kick off that sale. Katie Wilson-Milne:  So, what do you do in the lead up to an auction?  What are the key things you do to drive up interest in the sales ahead of time? Oliver Barker:  Well, there are kind of three elements, I suppose, in terms of how we best raise interest and therefore the kind of the excitement around a particular object and particularly trying to get somebody to actually come participate in that and bid in an auction.  First of all, there’s the announcement of the sale itself, and actually normally that is the sale catalogue.  So, that’s the very first time that the market’s actually been able to have a very holistic view on all the objects that we’re going to be selling in that particular moment. Sometimes preceding that, sometimes following that, are a series of well-orchestrated marketing campaigns, which might include taking a particularly important object to Hong Kong, for example. I actually think a very good example is the announcement today, in fact, is  the wonderful Modigliani Nude of 1917, which was actually launched online in a live web cast on Sothebys.com but from Hong Kong.  With a very deliberate view that you know, the unlikely buyer for an object like that may very well come from that region of the world. But at the same time you know, that is an object which will now return to the New York to be viewed in the next couple of weeks in a presale exhibition you know, within our building on York Avenue, and that’s the other key part of the exhibition, of suddenly going into an auction.  You know, we have a – usually 10-day, or sometimes longer or sometimes a little bit shorter, preview before a particular sale, which enables collectors to come in and look at the pictures, but I think also most importantly to really do due diligence and talk to experts at Sotheby’s or take their own independent advice and come in with somebody who has some particular knowledge in an artist’s work.  Even seek the opinion of a third party conservator, you know somebody who’s able to come look at an object, take it off the wall.  I mean in the same way that you wouldn’t acquire a house without having a full structural serving on it, collectors do very much the same thing with paintings.  I mean, they like to come onboard and actually have a look at conservator’s reports and get a sense of is it in the original condition from which it left the artist studio?  Have there been some kind of repaintings?  Are there any loses anywhere?  And then obviously, you lead to the auction itself, and that might be proceeded by dinner parties or press releases as well. But as I mentioned a moment ago obviously the sale tends to kick off at a very particular time.  Nowadays also because our auctions are broadcast online, it’s even more important that we kick off in sort of a timely manner.  And we’ve had going on behind the scenes throughout the whole auction process a number of internal meetings at Sotheby’s, which are called interest meetings, which are designed to help orchestrate and choreograph, what are the levels of interest that the works of art that we’re selling are driving in the market place.  In other words has that first lot in the sale had the kind of feedback that we thought it might, because it’s such a rare object, and that it seems to carry comparatively conservative estimates?  So in other words, has it driven three or four people to look as if they’re making the signs they might decide to make a bid on the auction? Steve Schindler:  So, Ollie, when you start the bidding you already have a sense, I gather, of who is interested and what level of interest they have. Oliver Barker:  Right, I think it’s fair to say that you know, auctioneering is a very irrational process, it’s not a fixed price.  I think to a perspective purchaser of art who’s never bought at auction before, there is some level of discomfort.  I mean by comparison to walking into a gallery, where quite often there is a published price or you know it’s known what the end user price might be, and of course barring any room for negotiation, you’ve got a fairly clear idea what you are going to be likely paying for a certain transaction.  When you walk into an auction, obviously, there is absolutely no guaranty that the object is going to be acquirable at a particular level of price, because of course it just – it entirely depends on who ends up bidding against you.  Having said that, what we are trying to do is to make the irrational as a rational as we possibly can.  In other words we are using our experience to try and understand what the likely outcome out of a particular auction might be. Now, obviously we would love to supersede our expectation and know that on the night you know, something might double or sometimes triple or if we’ve done our jobs correctly and we know we’ve got a wonderful object and equally it’s being well marketed and it’s highly desirable in the marketplace and you have been able to drive great interest in that particular object, you might probably might find that something will take off and make a really superlative price that has no precedence in the market to date. Katie Wilson-Milne:  How often does that happen that there’s sort of a runaway bid, bidding on a work that just takes everyone by surprise? Oliver Barker:  Well, I mean, Katiem you know, I wish I could say on every single lot.  I mean, I think that buyers now are particularly savvy.  And I think you know, we would expect them to also be fully aware of and advised of what comparable objects make in the market place.  So, depending on what you’re selling you know, there may be one sale.  And we had a great example of something which did superlatively well last May when we sold a Basquiat painting for $110 million — Katie Wilson-Milne:  Right. Oliver Barker: — it had an estimate somewhere in the region of just over $50 million, so that was a really great example of something which completely superseded what our presale expectations were. Steve Schindler:  And you were presiding over that auction, Ollie, as I remember. Oliver Barker:  Yeah, I had the great privilege of holding that auction. Steve Schindler:  How did that feel at the time? Oliver Barker:  It was terrifying.  I think that because I very much love the entertainment aspect of the auction, it was something, which seems to go very slowly.  Albeit I think time actually sometimes slows down actually when you’re dealing with such high figures.  And particularly when kind the freestyle excitement of two very determined bidders like that kind of really gets going. But it was a great privilege, it was tremendous work of art.  And I think also the signs in the presale activity have been that the market – this is the picture that market was really looking for.  I think you have the trilogy of a great object by a great artist, which is entirely fresh to market.  Really truly all those kind of the elements choreographed together to make a phenomenal price.  And I think in fairness to Sotheby’s also — I think we did a tremendous job in terms of marketing in that work and just making sure that on the night the two most likely bidders or end users ended up sort of fighting against each other and there was a real sort of gladiatorial kind of contest which went on between them. Katie Wilson-Milne:  It’s really interesting how much of the excitement I think of the auction actually happens before the auction, which you’ve talked about in terms of the press and the social media and the events.  And I wonder has that changed over time, in your experience? Oliver Barker:  You know, it’s really interesting to me that you know, well Sotheby’s is actually the – I think we’re the oldest company that’s listed on the American stock exchange.  We’re a company that was founded in 1744 in London by somebody who was a bookseller.  And I think the reason that we remain, or rather, auctioneering remains a really contemporary activity is that I still think it’s one of the most effective ways of selling works of art from one entity to another.  And I think you know, that we’re fortunate you know, being Sotheby’s — and Christie’s and Phillips could say very much the same thing — that we are deemed to be kind of very credible marketplaces for the sale of the greatest works of art and the thing that we particularly handle.  Having said that, I think that you know, particularly with the new opportunities afforded by the internet and social media etc., I think the abilities to market what we’re selling have grown massively within the last two years. And continue to kind of change all the time.  And I think that we as a business are very much at the forefront in terms of kind of trying to get technical innovation, very much front and center in terms of how we get objects sort of into the minds of the prospective purchasers out there. I think it’s fair to say at that actually auctioneering in a way remains a very, you know — it’s quite an old school form of actually selling something.  You know you have a finite amount of time to sell something, it has to be in a particular city, it has to start at a particular time, and you’re somewhat reliant on your audience actually being available and focused at that particular moment.  Having said that, you know and again to use another analogy, I think that’s race horses tend to run a little bit faster when they can hand the hooves of other horses beside them and I think very much — Katie Wilson-Milne:  Right. Oliver Barker:  The same with bidders.  You know I think that there is something very compelling to a major collector to feel that there is a competition for a work, which very much validates that quality of that particular work.  I mean I think in a way to sort of buy something against a reserve price or with no other bidder or under bidder can to a lot of people be quite a difficult situation.  It suggests that your taste has not been validated on the day of acquisition. Steve Schindler:  And some of the language that you use in an auction also is — seems adversarial, you know, when you say to a bidder “against you” or you know it’s — Katie Wilson-Milne:  You’re setting up a competition almost. Oliver Barker:  I think there are people who are very determined when it comes to auction to actually try and acquire something.  So I think the auctioneer’s role is very much to help translate that kind of rigorousness on a bidder’s behalf to really acquire that trophy and acquire that sort of particular masterpiece.  I mean, I think I prefer to use the word cajole in a way, rather than kind of adversarial.  I am not — Steve Schindler:  Fair enough, fair enough. Oliver Barker:  I am not sure how many bidders are overly adversarial — Steve Schindler:  Fair enough. Oliver Barker:  If I am cajoling them well enough.  And if that means kind of questioning their virility of bidding, then that’s definitely something that we like to kind of use as a means.  And I think the audience is very receptive to it as well. Katie Wilson-Milne:  Well, it makes it very exciting, and Steve and I in preparing for this podcast did some reading about work that’s been done on the psychology of the auction, and it’s — it’s really interesting. Oliver Barker:  Yes, yes. Katie Wilson-Milne:  I mean, people just react completely differently in an auction setting than they would in a private sale.  And you know I was thinking of you sort of as this psychological master leading the auction.  Now do you think about — Oliver Barker:  Yeah. Katie Wilson-Milne:  You know.  Do you do any research on that, or how do you think about the psychological? Oliver Barker:  No, very much so, and I think that it’s very hard to kind of really define it particularly when you’re in a live environment like that.  You know, there are examples and you know one sticks to my mind probably more than any was when we did the big Damien Hirst “Beautiful Inside My Mind Forever” Sale in 2008.  I mean in terms of a presale environment, you could not have got a more heady mixture than the imminent collapse of Lehman Brothers happening during the presale exhibition of that sale and then the eventual collapse of the bank and kind of the financial tsunami in the stock exchanges that was the direct result of it, which happened on the 15th of September 2008.  And that was the kind of the back drop to which we then held the sale that evening in London at 7pm. So you know from the announcement first thing in the morning that the bank, or rather the central bankers in America had chose not to support Lehman Brothers and it fell into administration, you suddenly saw opening in the Turkey stock exchange this sort of financial malaise that spread west around the day.  So by 7pm that evening in London, of course there was, you know, this front page news in the Evening Standard.  We were incredibly worried about what would happen and how the transition would affect the auction.  But I think it’s fair to say that you know in any auction environment there is a kind of a vacuum-like opportunity or intensity if you like where the outside world is somehow put on hold and people are particularly focused on the auction itself and I think actually, because the auction of Damien Hirst works was a completely unmitigated success.  I think there was an element of, you know, yes, psychosomatically people were very involved and very engaged with those objects, but as an auctioneer, you know, I was hopefully able to get their real attention that night and there are no rules — I mean, I think also — no rules in terms of what a bidder’s limit might be.  I mean, depending on what their financial means are.  I mean, a lot of our bidders are very astute and they come in with a very fixed idea of what they want to spend on a particular object.  There may be those who on the night have a particular limit, but then blow straight through depending on their mood. Katie Wilson-Milne:  I was going to ask you just that, right, do they stick to it? Oliver Barker:  Yeah.  Well, it’s you know I — I can only speak for my own experience you know when I bid in auctions outside of Sotheby’s, quite honestly you know you set yourself a limit, and I did this actually buying my wife’s engagement ring, you know I set myself a limit and then I just blew straight through it, because it was just an object I had to have.  And I think that’s also dependent on you know the high into the market, you know when you’re dealing with kind of unique Rothko’s or Modigliani’s or Francis Bacon paintings or Picasso’s, and you saw it clearly with the Leonardo painting that came up at Christie’s.  You know I think in that case, when there is an element of scarcity and rarity and kind of you know a one-offness in the marketplace, there’s much more likely and to be a kind of stellar auction price, which will be very hard to replicate. Steve Schindler:  So, Ollie, you’ve been very generous with your time.  And we’re sad to let you go, but I would like to ask just one more question before we conclude.  You are an auctioneer in London, you are an auctioneer in New York.  Is there difference between auctions held in Europe and the United States, or even Hong Kong, just in terms of the atmosphere and the — Katie Wilson-Milne:  The buyers? Steve Schindler:  The buyers? Oliver Barker:  I think the short answer is yes.  But I think as an auctioneer I am very conscious about trying to engage a different audience in a different geographical location.  I mean I think that in New York, in particular, with the auction room at Sotheby’s, it’s a vast space, it seats many more people than our London auction room.  And I think that they are obviously the stakes in terms of the values of the works tend to be a lot of higher.  There is arguably more participation actually from the telephones than there are in any other auction location.  And I suppose for me, being based in London, it’s a slight cultural nuance just on the, in the basis of being in a different city. But you know it’s now become very familiar to me.  I mean, I certainly as an auctioneer I remember the first time I got up in New York to take an auction it really felt as if I was sort of entering in a tremendous environment, a huge kind of stage and obviously with works to kind of back that up.  I think in London just by definition our building here is a little bit more quaint, albeit the auction itself is still to an audience of possibly up to six, seven hundred people.  But I think, you know, one has to be attuned to the kind of the audience that is looking as well as the people who are likely to be tuning in.  I mean, it’s very difficult as an auctioneer to know exactly who is on the end of a telephone line or who is watching from the comfort of their own home in terms of online bidding for example, but — because there are more numerous ways of actually pricing bids these days, we have to be accountable for each for each possible one. Katie Wilson-Milne:  Great.  Well, thank you so much for speaking to us today.  I know our listeners will enjoy hearing your perspective. Steve Schindler:  Thank you, Ollie. Oliver Barker:  My pleasure.  Thanks, Steve.  Thanks, Katie. Katie Wilson-Milne:  Well — so let’s talk about the rules, rules are obviously exciting to us because we’re lawyers. Steve Schindler:  We are lawyers and we love rules. Katie Wilson-Milne:  And auctions, I mean auctions do feel a little bit like the wild west, right, they are theatrical, you have people acting on impulse, it’s really exciting, bids go up 10s of millions of dollars at a time, but there is actually rules to it and regulations, so Steve what are some of those rules? Steve Schindler:  Well, there are really two sets of rules that govern auctions in New York.  One is the uniform commercial code, which is a code of laws that are adopted across all 50 states that governs the sale of goods.  And art is really a fancy kind of good.  So, UCC Section 2328 provides a contractual framework for auctions.  And it basically says that a contract is formed and a sale is complete when the auctioneer’s hammer falls.  And there are some specifications in the UCC about what happens, for example, if the hammer is falling. Katie Wilson-Milne:  Right. Steve Schindler:  And another bid comes in, and the UCC says under those circumstances the auctioneer has discretion to in a sense open up the bidding again.  The other thing that the UCC provides are some rules relating to whether or not there is a reserve or not.  If an auction goes forward without a reserve price, then once the bidding starts, the lot can never be withdrawn. So if the bidding is $5 or $10, it doesn’t matter what the object is worth, at that point the seller is kind of stuck with it and when the hammer falls that’s it.  If there is a reserve then, of course, the object can always be withdrawn from sale unless the reserve is hit. The UCC provides for two kinds of warrantees that are important in the purchase of art.  One is a warranty of title and the other is a warranty of authenticity.  A warranty of title, whether you’re buying from an auction house or from a dealer, is implicit in any sale.  The second warranty is a warranty of authenticity.  A warranty of authenticity, unlike the warranty of title, has to be expressed.  You need to say what you’re warranting in some fashion, and the way that works under the UCC with respect to an auction catalogue is if the work is listed in the catalogue as the work of a particular artist, that constitutes a warranty — Katie Wilson-Milne:  That it is. Steve Schindler:  That it is the work of that artist as supposed to other ways of formulating the catalogue description, such as something is “the school of” or “in the style of,” but whenever it is that you sell something and you list it in the catalogue as being the work of an artist, you are and the auction house is warranting that the work is authentic.  Warrantees of authenticity and title carry with them a four year statute of limitations, but one of the things that the auction house does with respect to its warranty of authenticity is to provide for a five year guarantee of the authenticity of the work, so they actually give you one more year than you normally get. Katie Wilson-Milne:  Right.  So if there is a problem with the work you buy at auction, you can go back to Sotheby’s or Christie’s within five years pretty much no questions asked as long as you have some backup for your concern.  They’ll give you your money back, take the work, and then it’s up to them to go to the consigner or the seller to sort things out with them. Steve Schindler:  Right.  And one of the things we know from working with auction houses is that they do a very thorough job on the consignment side.  So — Katie Wilson-Milne:  Well they have a lot at stake. Steve Schindler:  They have a lot at stake, and so you know that they are working very diligently to make sure that the works that they are selling have title and that they are what they are purporting to be. Katie Wilson-Milne:  And even if something comes up after the contracts have been signed, after the catalogue has been out, if something comes up that one of the auction houses doesn’t feel good about prior to auction, they can withdraw their work at their complete discretion.  And we have seen that a number of times that they’re really cautious, and they’ll pull something at the last minute. Steve Schindler:  Right.  And it’s a very difficult decision to make, because obviously it’s not great for the consigner.  In New York, the New York City Department of Consumer Affairs also has a set of rules for licensing auctioneers and regulating public auctions.  And interestingly these rules were substantially revised in the 1980s, particularly in the aftermath of a scandal that hit Christie’s as an auction house, where a number of works were not in fact sold because reserves were not met, but in order to boost the market, Christie’s and its then chairman falsely reported that the works were in fact sold. And after that happened, the chairman of Christie’s at the time was forced to resign and the Department of Consumer Affairs decided that they needed to get a little bit tougher with the regulation of auctions just to make sure that the public would feel secure in bidding at an auction.  After their obligations to the vendors and the consigners, which, Katie, I know you’ll talk about a little bit, the main obligation the auction house has to the buying public is to really ensure that the bidding is fair and that the sale conditions are transparent and that everybody knows the rules. So a few of the things that were changed at the time that these rules were overhauled was that the existence of the secret reserve price now must be disclosed, not the amount of it, but the fact that there is a secret reserve price must be disclosed.  Also when we talked about guarantees before, if there is a guarantee that is given on a lot, that also must be disclosed.  We know that auctioneers under the rules are never allowed to bid for their own account unless that bidding is disclosed and except up to the reserve price.  We talked about chandelier bidding, for example.  If there is to be chandelier bidding, it has to be disclosed, and all of these disclosures are normally made in the big auction catalogues with — Katie Wilson-Milne:  With little symbols. Steve Schindler:  With little symbols, when you look at the terms of sales, it goes through all these types of items and then indicates whether there are guarantees, whether there are financial incentives of any kind being offered to the sellers.  And the idea is that this kind of information will help inform the market in their bidding.  And sometimes, in fact, when these conditions change even at the last minute, the auction houses will post notices outside the auction room with any disclosures that have to be made. Katie Wilson-Milne:  So the New York City Consumer Affairs rules also require that there be a written contract for every auction between the auction house, or the auctioneer, and the seller, commissions that are charged have to be disclosed.  There has to be a disclosure of any interest that the auction house or any related party has in the work, whether they own a part of the work or, you know, have an interest in a guarantee on the work.  The auctioneer cannot disclaim warranty of title even though under certain circumstances the UCC would permit that, which is what Steve was just talking about, and the consigner has to make a warranty of title.  So there is two ways that the buyer is protected in terms of the title. So there is also this concept in auctions of an enhanced hammer price.  And that means, in the old model, auction houses made most of their money from consigners paying them a fee.  So if I owned a work of art and I went to an auction house and sold it, I would give them a percentage of what I got from the sale.  For a variety of reasons I think mostly, Steve, because of competition among the auction houses to get sellers to consign amazing works, the auction houses for certain clients charge very little if anything of a seller’s commission.  And now they seem to be getting most of their money from what’s called the buyer’s commission. Steve Schindler:  And the buyer’s premium is something that’s set out in the — very clearly in the terms of sale and the buyer’s premium, unlike the seller’s commission, is really never negotiable. Katie Wilson-Milne:  The amount of the buyer’s premium changes depending on the price of the work. Steve Schindler:  Right. Katie Wilson-Milne:  Right so — Steve Schindler:  As the price of the work goes up, the percentage of the premium goes down. Katie Wilson-Milne:  Goes down a little bit.  And so, but it’s even beyond that now right, Steve?  So now the competition is so fierce for sellers or consigners that sometimes the auction house will promise the seller a share of the buyer’s premium which is the original fee that’s supposed to go to the auction house. Steve Schindler:  Right.  And that’s known as an enhanced hammer. Katie Wilson-Milne:  Or under the New York Consumer Affairs Laws a rebate.  So auction houses are agents.  They work for the seller technically, so they are a fiduciary of the seller, not of the buyer.  Although the regulations and rules that we just talked about, the UCC and the New York Consumer Affairs Rules, really mostly serve to protect the buyer.  So it’s sort of an interesting relationship in that is a fiduciary relationship.  The auction house is a fiduciary of the seller, which means that they have to act in the utmost good faith and in the interest of the consigner throughout their relationship, meaning they have to take care of the consigned work, they have a duty to disclose details that influence what the work can sell for, how auction-able it is, if there are any issues that come up in due diligence about the work, then the proceeds from the auction sales are really held in trust for the seller they belong to the seller and the auction house holds them as a fiduciary meaning it can’t use those proceeds for other business purposes. So those basic fiduciary laws exist in the auction-consigner relationship, but they’re overlaid with practices and rules that come up in the UCC and the Consumer Affairs Rules that really make the relationship one towards the buyer as well.  And I think this is unique to the auction world that the auction is facing the seller as a fiduciary, as an agent, and the buyer with all these rules of disclosure that come out. Steve Schindler:  Yeah.  So it’s a little bit different than a sort of gallery situation.  I mean, there you have the same technical legal relationships.  You have a consigner of works to a gallery is in a fiduciary relationship with the gallery owner, and the customers or the clients at the gallery are not, but you don’t have that same level of regulation governing — Katie Wilson-Milne:  Right. Steve Schindler:  The sort of practices vis-a-vis the client. Katie Wilson-Milne:  It seems to be more clear in the private sale world who is responsible to whom, that the gallery is a fiduciary of either the artist whose work they’re selling.  Or if they take a work from a collector to sell, they are the agent of that collector and it’s a little more clear.  In the auction world, there are all these regulations.  Some of the practices that seem to conflict with traditional fiduciary-like obligations are guarantees where the auction house has an incentive to make money on its own account if it can sell work for above the guarantee, right? Steve Schindler:  Right. Katie Wilson-Milne:  And then it’s dealing with this potential third party who also has an interest in the outcome of the sale and it’s not the seller. Steve Schindler:  Right.  And I think the other really important fiduciary obligation that the auction house has to the consigner of works is this question of auctionability, of looking at a work and deciding — Katie Wilson-Milne:  Yeah. Steve Schindler:  is this something that should really be in an auction or in an auction this May or November or is it something that really should be sold privately, because if you put something up for auction that isn’t right, then the consequences to the seller are pretty severe.  It’s a sort of public shaming of the work and that is you know very difficult for an entity who lives — Katie Wilson-Milne:  Makes all it’s money — Steve Schindler:  On selling people’s works at auction.  So, it’s a really important fiduciary duty.  It’s one that I think that the auction houses try to live up to, but it does create a natural tension. Katie Wilson-Milne:  Yeah.  And I think we would call these things potential conflicts of interests, the guarantee, the fact that auction houses want things to go to auction even while they’re fiduciaries of the seller and it may not make sense for something to go to auction at a certain time.  And then there is the buyer’s premium, where the auction house is getting paid by the buyer and is incentivized to sell work at a certain price or a certain time so that they can get the buyer’s commission.  And then what about art loans does that — how does — how do art loans fit into the fiduciary obligations of the house?  How do art loans work in the auction? Steve Schindler:  So, art loans now are fairly common.  They can either be made by the auction houses themselves.  For example Sotheby’s has a significant loan and finance department, and what it typically does is offer advances to consigners who were selling works at an auction.  So if I put my work up for auction in May, but it’s January and I’d like to have some cash in advance, typically they will loan you 50% of the low estimate. What’s problematic here is that if the work doesn’t sell at auction then you still have to pay back the loan.  And — so I would say that the interfacing of the auction house and their making of the loan, that that’s not a fiduciary relationship that that is an arms length relationship no different than if you went out to a bank or to a special purpose financing company and sought a similar kind of loan. Katie Wilson-Milne:  The buyer is paying interest to the auction house too, so it’s a profitable enterprise — Steve Schindler:  Yeah and — Katie Wilson-Milne:  theoretically. Steve Schindler:  And it started out really as an accommodation business.  I think it’s grown a little bit past that, but the idea would be if you were Sotheby’s or Christie’s and you are competing for prized consignments, one of the incentives that you would offer your consigners would be an advance. Katie Wilson-Milne:  And now they can make a loan, that’s in a more traditional lending format and gets some interest in the process. Steve Schindler:  Right. Katie Wilson-Milne:  It sounds like  we should do a whole episode on art lending and — Steve Schindler:  Maybe we should — Katie Wilson-Milne:  art finance. Steve Schindler:  I think we will. Katie Wilson-Milne:  So another way or a way that the auction houses and the auction system gets around this potential conflict between fiduciary obligations to the seller and rules of disclosure to the buyer is in their contracts.  And as is always true, having a contract that lays out the terms of a relationship is a great idea and it prevents other legal claims such as breach of fiduciary duty.  So it’s pretty clear in the law that you can modify fiduciary obligations by contract.  And that is just what the auction houses do, so they have consigner agreements with the seller and they have terms of sale.  And both of those are contractual obligations, either between the seller and the auction house, in the case of the consignment agreement and in terms of sale between all three parties the auction house, the seller, and the buyer. So what are the main contract terms that are laid out in a consignment agreement in terms of sale?  One is the commissions to make clear who is benefitting from what that the seller knows there may be a buyer’s commission, if they have a share in that or not.  That’s all laid out.  So any potential conflict of interest is disclosed and accepted by both parties.  The seller, the consigner makes representations and warranties with respect to clear title, the ability to sell the work or authority to sell the work if it’s an entity selling, authenticity of the work etc., and the contract will lay out the consequences to the seller if those warrantees and reps are not true. And that’s because as we’ve just said the auction house has a duty to the buyer which is both governed by the UCC and under the auction house’s contractual obligation to take work back within five years, if there is an issue with authenticity.  The contract with the seller means they can go back to the seller and sue them if need to be to recover the value they lost from accommodating the buyer. Steve Schindler:  And what happens now if the buyer doesn’t pay? There have been a couple of lawsuits that have been in the headlines lately about buyers who have made bids and then just decided not to pay. Katie Wilson-Milne:  It’s kind of incredible to me that that happens that you could be a high profile enough bidder to be at a big night auction at Sotheby’s or Christie’s, that they would vet you financially ,which we know they do, and they have to.  That’s smart.  And it would still happen that the buyer’s like, “no actually I changed my mind, I’m not going to pay.”  So — Steve Schindler:  So then what happens if you are a seller? Katie Wilson-Milne:  So if you’re a seller, the contract says that the auction house is under no real obligation to go and collect money for the sale. Steve Schindler:  Right. Katie Wilson-Milne:  Like they’re going to do their best to sell it.  It’s clear you know what reps and warrantees are being made, but if the auction house doesn’t get the money, they can’t give it to you.  So the seller really does bare the risk of that.  Now, both the seller and the auction house may have civil causes of action where they can go after the so-called buyer who didn’t pay for breach of contract, and that is in fact what happens.  If it’s enough money that it’s worth it, the auction house will sue. Steve Schindler:  Right.  And even they don’t have a legal obligation to do it, they probably in order to just to preserve the integrity of their auction and to entice other people to sell with them, they need to sometimes enforce the promises of buyers. Katie Wilson-Milne:  They could also have a 20% interest in — Steve Schindler:  That’s right too. Katie Wilson-Milne:  The sale price, so it might be — it might be financially worth it for the auction house, too. Steve Schindler:  Right.  And what about do auction houses now concern themselves with money laundering and source of funds? Katie Wilson-Milne:  They do greatly.  And we deal with this a lot.  There is increasing oversight I think from banks with large amounts of money moving in and out of accounts.  So there’s some financial regulation, which is not regulation of the art world though, which overlaps with the art world, just because it’s about movement of funds.  There is also, we know, for Chinese buyers pretty strict regulations in China with respect to how much money can leave China every year, and it’s a really low number.  So there are reasons that the auction house is going to want to check into the type of client they’re dealing or the type of potential buyer to make sure that they’re not going to get caught up in some kind of regulatory investigation or lawsuit or third party subpoena where they’re going to have to turn over their records and be scrutinized. Steve Schindler:  So I think it’s fair to say, and it’s not obvious, that you can’t just stroll into a high-profile auction in the evening for major pieces of Contemporary Art and pick up a paddle and then just sort of raise it away. Katie Wilson-Milne:  Indeed no. Steve Schindler:  That there is a lot of due diligence both on the seller’s side and the buyer’s side that the auction house is performing.  That’s one of the things that — Katie Wilson-Milne:  Before you get the paddle. Steve Schindler:  Exactly. Katie Wilson-Milne:  Yeah.  And that’s probably something that’s changed dramatically and increasingly as the art market has taken off and become you know a $60 billion  industry, that it becomes harder and harder to take part in one of these auctions because there is too much at stake if you don’t pay, or it’s going to get the auction house in trouble.  So the contracts that the auction houses has with the seller also protects the auction house by providing a broad indemnification from the seller.  So just like we were talking about a minute ago, if something goes wrong with the sale, there is a title issue despite the fact that the seller warranted there wasn’t or there is an authenticity issue, the seller says, “I am going to cover those costs for you, the auction house, including your legal fees. I’ll refund you the work.”  Now, enforcing it is a different matter, but the seller does indemnify the auction house.  It doesn’t directly protect the buyer.  The buyer will still go to the auction house and the auction house will protect the buyer, but they can then turn around and go to the seller.  It also provides that the seller is going to pay certain expenses, that there’ll be reserve prices, what happens if the reserve isn’t met, that it will be bought in, that it will be announced publicly. And then, too, I think the most significant contractual modifications of the fiduciary relationships, which are that the auction house maintains until the date of sale the right to rescind in its sole judgment if it thinks there is any liability possible.  So it doesn’t even have to explain to the seller.  It might want to, because they want to maintain that client relationship, but the auction house has the right until right before auction to pull a sale for any reason if it feels that there is some liability involved.  And they do.  They do do that. Steve Schindler:  Right.  And sometimes it doesn’t seem entirely fair.  There was a case a couple of years ago involving a consignment of a work of Katie Nolan to Sotheby’s — Katie Wilson-Milne:  Right. Steve Schindler:  And Katie Nolan had prior to the sale disclaimed authorship of the work because it had been in her view improperly conserved — Katie Wilson-Milne:  Was she the consigner or she — Steve Schindler:  No, she was not the consigner, but she was — she was — Katie Wilson-Milne:  She was the author of the work. Steve Schindler:  The author of the work and we know under the Visual Artists Rights Act that the author— Katie Wilson-Milne:  If you listened to our last episode. Steve Schindler:  Yes.  That the author of a work has the right to disclaim authorship of the work if she believes that it has been damaged in a way it would reflect poorly on her honor and integrity.  And in this case, Katie Nolan had viewed the work, observed that it had been improperly conserved, in her view, and publicly disclaimed authorship of the work, at which point Sotheby’s felt compelled to pull the work from the auction because it no longer could in its view give a warranty of authenticit

On this month’s podcast we discuss the non-economic “moral rights” of artists in the context of the famous 5Pointz aerosol art mecca in Long Island City, Queens that was whitewashed and torn down in 2013.  In the ensuing litigation, the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute.  In a surprise to many, they recently won $6.7 million in damages after succeeding on these claims.  The art, however, was permanently lost.  Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti.  They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial. Resources: https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html https://news.artnet.com/art-world/judge-awards-6-million-5pointz-lawsuit-1222394 http://nymag.com/daily/intelligencer/2018/02/artists-won-at-5pointz-but-the-decision-was-terrible-for-art.html https://www.google.com/search?q=photos+of+5pointz&rlz=1C1GGRV_enUS753US753&source=lnms&tbm=isch&sa=X&ved=0ahUKEwiZ5PiEtqbaAhUSuFMKHbrMCd8Q_AUICigB&biw=1920&bih=949 https://untappedcities.com/2014/10/14/35-photos-from-inside-the-demolition-at-5-pointz/   http://www.meresone.com/about/ http://meventusa.com/ms/marie-cecile-flageul/ https://www.varaart.com/   5Pointz Opinion Denying Injunction 5Pointz Decision     

We discuss a landmark lawsuit that represents a decisive victory for street artists in the fight to legitimize and protect their work. See acast.com/privacy for privacy and opt-out information.

Law firms are full of people with the title “partner,” but what exactly does that mean? After years of change, the title ain’t always what it used to be. Senior reporter Andrew Strickler comes on the show this week to talk about “partners,” particularly as it relates to the wave of gender bias suits filed against BigLaw firms. Also this week, we discuss a big ruling on the destruction of New York City graffiti space “5Pointz”; a new lawsuit claiming bar prep giant Barbri colluded with top law schools to crush competitors; and Taylor Swift’s efforts to shake off a lawsuit alleging she stole lyrics for some of her songs.

From Criminal Cops last week to Private Police this week, I wonder which ones are more successful? What's in the News with stories on zero tolerance, deadly cops, rapist cops, graffiti trumps property rights, Tide Pod bans, and Pentagon loses more money. Plus, a special Herding Cats episode on a follow up from Liberty Forum and big news for PorcFest XV. This episode is brought to you by Heleum, a long-term savings accelerator allowing you to start investing in cryptos, without you having to do the busy work. Also brought to you by ZenCash, a cryptocurrency that infuses privacy, anonymity, and security done right.   WHAT'S RUSTLING MY JIMMIES After last week's Criminal Cops episode, I was thrilled to see the article on Private Police that I'll be covering in this episode. Apparently, in Britain, there is a new completely private police force probing hundreds of crimes, including murder and rape, and they have a 100 percent conviction rate so far. They have prosecuted more than 400 criminals and are led by former Scotland Yard senior officers. The name of the firm is TM Eye, and they are now believed to bring more private convictions than any other organization except for the RSPCA, the Royal Society for the Prevention of Cruelty to Animals.   WHAT'S IN THE NEWS In zero tolerance, zero brains news, 22-year old track coach, Tayler Boncal, is being charged with three counts of felony sexual assault, on a man who is 18 years old. I shit you not. In fuck the police news, a Tennessee sheriff is being sued for using excessive force after he was recorded boasting he told officers to shoot a man rather than risk damaging police cars by ramming him off the road. In kidnapped consent news, 18-year-old Anna was kidnapped from a parked car by two plainclothes detectives for having weed in the car. Handcuffed and kidnapped by the two over-six-feet tall detectives who were powerfully built, Anna, a slender woman just over five feet tall, was put into the back of an unmarked police van with tinted windows, where she was raped by both officers while repeatedly telling them, "No." In what the actual fuck news, ruling that graffiti — a typically transient form of art — was of sufficient stature to be protected by the law, a federal judge in Brooklyn awarded a judgment of $6.7 million on Monday to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens. No, I can't make this shit up. In the stupid protecting the stupid news, New York State Legislators have unveiled a bill that would require all detergent packages, such as Tide Pods, sold in New York to be of a uniform color that is "unattractive to children." The product would also have to come wrapped in child bite–resistant packaging. Also, there would need to be a warning label informing would-be Tide Pod champions that the product is dangerous to eat. In it's only stolen money news, the Pentagon failed to track more than $800 million in construction spending adequately, according to an internal audit of one of the Defense Department's largest agencies. HERDING CATS I'm fresh off of the New Hampshire Liberty Forum high from this weekend! I love Liberty Forum because it is a huge family reunion for me. I get to see so many people who are family, plus I get to continue to grow my liberty family by meeting new, amazing people. This year, I stayed pretty busy at the event because I had to man the PorcFest table to sell early bird tickets for this year's event. And, I was asked to moderate two different panels of podcasters and captain two off-site dinners related to liberty media. But I still found time to hang out with the most amazing people on the planet. And, this weekend we announced our first speaker and musical act for PorcFest. BackWordz, a solid libertarian ancap rap metal band from Texas fronted by Eric July, co-founder of the Being Libertarian Facebook Page and very outspoken anarcho-capitalist.  And, while we have them there, Eric July will be speaking on the Main Pavillion stage. This is the first of many announcements we will have in the upcoming weeks, but don't miss out on your Early Bird tickets now by going to thelavaflow.com/pf. Get your Early Bird Tickets today and save $30 before March 1st at thelavaflow.com/pf.   ASK ME ANYTHING So, normally I'd wait until next week to answer some AMA questions, but I had a little extra time this episode. I thought I'd use that to help me get caught up with a couple of questions.  Robert Murphy's short pamphlet called Chaos Theory Murray Rothbard's For a New Liberty

(New tracks, Winter Olympic medal count,) (5Pointz, St. Valentine's Day...) (.............)

EPISODE 111 Art. Vandalism. Blight. Freedom. Crime. Creativity. Graffiti has divided New Yorkers since it first appeared on walls, signs and lampposts in the late 1960s. Its ascent paralleled the city's sunken financial fortunes, allowing simple markings to evolve into elaborate pieces of art. The only problem? The best examples were on the sides of subway cars which the city promptly attempted to eradicate, their attempts thwarted by clever, creative artists and a downtown culture that was slowly embracing graffiti as New York City's defining art form. This is a history of the battle between graffiti and City Hall. And a look at the aftermath which spawned today's tough city laws and a warehouse space in Queens called 5Pointz, where graffiti masterpieces thrive in abundance today. www.boweryboyspodcast.com Support the show.